Imágenes de páginas
PDF
EPUB

distinguishable from what is natural product, although it artificial
may be increased by cultivation (a). It seems, however, grasses :
that the artificial grasses, such as clover, saint-foin, and the
like, by reason of the greater care and labour necessary for
their production, are within the rule of emblements (b).

But the doctrine of emblements extends to a crop of that second year's
species only which ordinarily repays the labour, by which it crops.
is produced, within the year in which that labour is bestowed,
though the crop may in extraordinary seasons be delayed
beyond that period (c). In Graves v. Weld (d), the tenant
for a term determinable upon a life, sowed the land in
spring, first with barley, and soon after with clover : The
life expired in the following summer: In the autumn the
tenant mowed the barley, together with a little of the clover
plant which had sprung up: The clover so taken made the
barley-straw more valuable, by being mixed with it; but the
increase of the value did not compensate for the expense of
cultivating the clover, and a farmer would not be repaid such
expense in the autumn of the year in which it was sown:
The reversioner came into possession in the winter, and took
two crops of the same clover, after more than a year had
elapsed from the sowing: It was held that the tenant was
not entitled to emblements of either of these two crops:
first, because emblements can be claimed only in a crop of
a species which ordinarily repays the labour by which it is
produced within the year in which that labour is bestowed ;
and, secondly, because, even if the plaintiff were entitled to
one crop of the vegetable growing at the time of the cesser
of his interest, this had been already taken by him at the
time of cutting the barley.

It remains to consider in what cases the executor or

[merged small][ocr errors]

matters have come in question.
The general right seems to have
been admitted in Graves v. Weld,

(a) Gilb. Ev. 215, 216. Com. Dig. Biens, (G. 1.) See also Evans v. Roberts, 5 B. & C. 832, in the judgment of Bayley, J.; and Co. Lit. 56, a.

(6) 4 Burn. E. L. 299. No case seems to have occurred where these

ubi supra.

(c) 5 B. & Adol. 118.

(d) 5 B. & Adol. 105. S. C. 2 Ney. & M. 725.

In what cases administrator is entitled to emblements. Where the deceased the executor is entitled to

was seised in fee simple of the land, his personal representein blements :

atives are entitled to emblements as against the heir (e) : as against the though not as against a dowress (f). So if the deceased was heir :

seised in fee tail, his executor or administrator is entitled to the privilege as against the heir in tail (g). But where a man is seised of the soil as joint-tenant, and dies, the corn, &c., sown, goes to the survivor, and the moiety shall not go to the executors or administrators of the deceased (h): Yet if a joint-tenant agree that his companion shall occupy and sow all the land, who sows and dies before severance, his executors shall have the emblements (i).

It must be observed, however, that if a man seised in fee, sows the land, and then conveys it away, and dies before severance, the crops will not go to the executor of him who has conveyed away the land, but will pass with the soil as

appertaining to it (k). as against a In like manner, the executor of a tenant in fee does not devisee :

enjoy the right to emblements as against a devisee; for if the land itself is devised, the growing crops pass to the devisee, and the executor is excluded (1). And though the devise was made before sowing, and the devisor afterwards sows, and dies before severance, the devisee shall have them, and not the executor (m). So, if the testator, being seised in fee, sows the land, and devises it to A. for life, (without any remainders over,) and the testator and A. both die before severance, the executors of A. shall have the crop, though

:

(e) Co. Lit. 55, 6. note (2). Lawton v. Lawton, 3 Atk. 16. Com. Dig. Biens, (G. 2.) Gilb. Ev, 214. 215,

(f) See post, p. 638.

(9) Com. Dig. Biens, (G. 2.) Wentw. Off. Ex. 145, 14th edit.

(h) Per Popham, J., in James v. Portman, Owen, 102. Rowney's case, 2 Vern. 323. Com. Dig. Biens, (G. 2): for joint-tenants are

supposed to carry on the cultivation of the soil by a joint stock, and in all joint stock, except merchants', there is a survivorship: Gilb. Ey. 212, 213 : but see ante, p. 577.

(3) James v. Portman, Owen, 102.

(k) Gilb. Ev. 214.

(1) Spencer's case, Winch. 51. Gilb. Ev. 215.

(m) Com. Dig. Biens, (G. 2.)

A. did not sow (n).

This rule is founded upon a presumption that it is the Will of the testator, that he who takes the land should take the crops which belong to it; because every man's donation shall be taken most strongly against himself (o).

However, this distinction between the heir and devisee, though fully established, is mentioned by Lord Ellenborough, in West v. Moore (p) as capricious enough. And the presumption may be rebutted by words in the Will, that show an intent that the executor shall have the emblements (q). Thus where the testator devised certain estates to A. in fee, and to his executors all his money, &c., stock upon his farm, with the implements of husbandry, and all other his personal estate of what nature or kind soever, in trust, to pay debts and legacies, &c., it was held that the devise of the stock upon his farm carried the standing crops of corn growing there at the time of his death from the devisee of the land to the executors ; although there were assets sufficient to pay all the debts and legacies without that aid (r). So where there is expressly a legatee of the growing crops, or any

(n) Winch. 51. Co. Lit. 55, b. ground will pass. But in Vaisey note (2), from Hal. MSS.

v. Reynolds, 5 Russ. 12, Sir John (0) Gilb. Evid. 214. On the same Leach, M. R., held that a gift of ground, if a man seised in fee sows "all farming stock” will not pass copyhold lands, and surrenders crops on the ground, as between a them to the use of his wife, and particular and residuary legatee; dies before the severance, the wife and his Honor observed, that in shall have the corn, and not the Cox v. Godsalve, and West v. executors of the husband : for this Moore, the devisee was excluded, is a disposition of the corn, being rather because the executor was appurtenant to the land: 1 Roll. plainly meant to take the whole Abr. 727, pl. 18. Gilb. Ev. 214. personal estate, than from the

(P) 8 East, 343. See also a note mere force of the words "stock on of Hargrave to the same effect, Co. my farm.” See, however, Blake v. Lit. 55, b.

Gibbs, 5 Russ. 13, in notis, where (9) 8 East, 343, by Lord Ellen- Lord Gifford held that emblements borough,

will pass as against a residuary (r) West v. Moore, 8 East, 339. legatee, under the description of Cox v. Godsalve, 6 East, 604, note. stock on a farm, of which the tesSee also Godolphin, Pt. 3, c. 21, tator was tenant for life. See also s. 13, that by a bequest of “ Move- Rudge v. Winnall, 12 Beav. 357. ables,” the industrial fruits of the

а

specific bequest in the Will which can apply to emblements, they will vest in the executor, and after his assent, in the specific legatee (s).

The privilege of taking the emblements is by no means confined to the case of the representatives of a person seised of the inheritance, as against the heir : but the rule is general, that every one who has an uncertain estate or interest, if his estate determines by the act of God before

severance of the crop, shall have the emblements, or they Right of ex- shall go to his executor or administrator (t). Therefore, the ecutor of tenant for life to executor or administrator of a tenant for life is entitled to emblements.

emblements to the exclusion of the remainder-man or reversioner: because in this case the estate of the tenant is determined by act of God (u). So if tenant for years, si tamdiu vixerit, sows, and dies before severance, his executor shall have the corn, for the uncertainty of the determination of his estate (x).

But there may be a case where the executor of the tenant for life has no right to emblements, on account of the deceased not having been the actual party who sowed the land, and the consequent failure of the reason upon which the right is founded. Thus if A. seised of land, sows it, and then conveys it or devises it to B. for life, remainder to C. for life, and B. dies before the corn is reaped, in this case B.'s executors shall not have the emblements, but they shall go with the land to C. (y). And if A. seised in

(s) Swinb. Pt. 7, s. 10, pl. 8, year, and the new owner of the p. 933, et seq., 7th edit. Cox v.

land shall be entitled to a proporGodsalve, 6 East, 604, note to tion of the rent. Crosby v. Wadsworth.

(2) 1 Roll. Abr. Emblements, (t) Com. Dig. Biens, (G. 2.) (A.) pl. 12, p. 727.

(u) Co. Lit. 55, b. Where the (y) Grantham v. Hawley, Hob. landlord is tenant for life, and by his 135. Anon. Cro. Eliz. 61, recogdeath the estate of his tenant at rack- nised, ibid. 464. Spencer's case, rent is determined, it is enacted by Winch. 51. Co. Lit. 55, b. note, stat. 14 & 15 Vict., c. 25, s. 1, that from Hal. MSS. 1 Roll Abr. 727, instead of claims to emblements, pl. 21. Gilb. Ev. 214. So if a man the tenant shall continue to hold sows land and lets it for life, and till the end of the then current the lessee for life dies before the

fee, sows land and conveys it to B. for life, remainder to C. for life, and both B. and C. die before severance, the crop shall not go to the executors of either B. or C., but revert to A.().

If a disseisor sow the land of tenant for life, and the tenant for life die, the executors of the tenant for life shall have the corn, and not the disseisor, nor he in reversion (a). The executors or administrators of the incumbent of a Right of execu

tors of clergy benefice would probably at common law be entitled to the

to emblements emblements of the glebe lands: for the deceased had an of the glebe. uncertain interest in the land, which was determined by the act of God. The right, however, is fully established by the statute 28 Hen. VIII. c. 11, which provides and enacts, that in case any incumbent happens to die, and before his death, hath caused any of his glebe lands to be manured and sown at his own proper costs and charges with any corn or grain, that then in that case every such incumbent may make his testament of all the profits of the corn growing upon the said glebe so manured and sown (6).

If the successor be inducted before the severance of the emblements from the ground, the successor shall have the tithe thereof; for although the executor represent the person of the testator, yet he cannot represent him as parson,

corn is severed, his executor shall Gilb. Ev. 215 : but see the preced-
not have it, but he in reversion. ing note.
So if tenant for life sows the land, (a) Knevit v. Poole, Gouldsb.
and grants over his estate, and the 145, by Popham and Fenner.
grantee dies before the corn is (0) But a parson who resigns his
severed, his executor shall not have living, is not entitled to emble-
it: by Popham and Gawdy, Jus- ments: Bulwer v. Bulwer, 2 Barn.
tices, in Knevett v. Pool, Cro. Eliz. & Ald. 470. The general rule of
464. But if the devise be to B. law is, that the tenant shall not
for life, without remainders over, have emblements when the tenancy
and B. dies before severance, the is determined by his own act; as
executor of B. shall have the where the lessee surrenders, or a
corn, though B. did not sow: woman who is tenant durante ridui-
Winch. 51. Co. Lit. 55, b, note tate marries, or the estate deter-
(2), from Hal. MSS. Ante, p. 634, mines by forfeiture, condition bro-
635.

ken, &c. : Com. Dig. Biens, (G. 2.) (z) Hobart, 132, in margine. Davis v. Eyton, 7 Bingh, 154.

:

« AnteriorContinuar »